Error and/or relief
In the prior appeal, the appellate court reversed the denial of the defendant’s petition for recall of sentence under section 1172.6 and ordered the trial court to grant the petition. On remand, the trial court granted the motion and redesignated the offense as three counts, and imposed the upper term.
It was error to resurrect and redesignate for sentencing counts that were dismissed in the original plea negotiations. It was also error to impose the upper term on circumstances in aggravation that were not submitted to a jury for proof beyond a reasonable doubt.
First Holding:
When the trial court granted the defendant’s petition for resentencing under section 1172.6, his judgment became nonfinal and was subject to the retroactive application of AB 333. AB 333 made changes to the law on gang enhancements and narrowed the definition of a criminal street gang.
The defendant’s admission under the former law does not satisfy the elements now required under the current law. The stipulation at the preliminary hearing that the [named gang] was an ongoing street gang that engages in a pattern of criminal activity pursuant to section 186.22(f) is insufficient under any standard to prove either the gang enhancement or the gang offense under current law.
Authority:
People v. Trent (2025) 112 Cal.App.5th 251, 262–263 [once petition for resentencing under sec. 1172.6 is granted, judgment is no longer final]
People v. Lopez (2025) 17 Cal.5th 388, 393 [AB 333 is retroactive to nonfinal judgments]
In re Estrada (1965) 63 Cal.2d 740
People v. Silva (2021) 72 Cal.App.5th 505, 526–527
Second Holding:
When a murder or attempted murder conviction is set aside under section 1172.6, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the murder or attempted murder was charged generically, and the target offense was not charged.
Authority:
PEN 1172.6(e)
Third Holding:
Section 1172.6 does not define what constitutes an underlying felony or target offense, but our high court in Arellano held that the meaning of these terms is clear—an underlying felony refers to the felony underlying a felony-murder theory, and the target offense refers to the offense the natural and probable consequence of which was murder.
Authority:
People v. Arellano (2024) 16 Cal.5th 457
People v. Lara (2025) 108 Cal.App.5th 1005 [the trial court erred by resurrecting counts dismissed in the parties’ plea agreement on resentencing]
Fourth Holding:
Application of the trial court’s resentencing discretion under section 1172.6(e) here is circumscribed by the prosecution’s exercise of charging discretion in the original proceeding. Here, that limitation is the district attorney’s election to dismiss all charges involving [victim 1] as well as the substantive gang count in return for the defendant’s plea to a single count of attempted second degree murder of [victim 2].
Authority:
People v. Arellano (2024) 16 Cal.5th 457, 476 [deeming it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions every time a petitioner succeeds in setting aside a conviction under section 1172.6]
People v. Lara (2025) 108 Cal.App.5th 1005, 1026
Fifth Holding:
There is no dispute that there is no qualifying felony for which the prosecutor could have proceeded under a theory of felony murder in this case.
Thus when resentencing the defendant, the trial court was required to redesignate his offense as a target offense—the offense of which the natural and probable consequence was the attempted murder.
In this case, conviction for attempted murder of [victim 2] was properly redesignated as assault with a semiautomatic firearm on [victim 2]. We conclude that the trial court erred by resurrecting counts stemming from conduct that the district attorney plainly chose to dismiss as part of the negotiated settlement.
These dismissed counts cannot form the predicate for relief for the defendant’s petition for resentencing. Because the defendant did not plead to any other offenses than the attempted murder of [victim 2], the target offense underlying the attempted murder of one named person is not two assaults with a firearm on two persons. Courts may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6e).
Authority:
People v. Arellano (2024) 16 Cal.5th 457, 475, 477
People v. Lara (2025) 108 Cal.App.5th 1005, 1027
Sixth Holding:
Though not applicable here, had the prosecution alleged and proved a target offense in addition to the attempted murder, on successful petition under section 1172.6, the court would be limited to sentencing the defendant on the charged target offenses that were proved. The trial court under section 1172.6(d)(3) would not have been otherwise entitled to resentence the defendant on charges that could have been [but were not] established by the evidence.
Authority:
PEN 1172.6(d)(3)
People v. Arellano (2024) 16 Cal.5th 457, 470
Seventh Holding:
The trial court erred by imposing an upper term for the count of assault with a semiautomatic firearm on [victim 2] without holding a jury trial as requested.
Under section 1170(b), when a statute specifies three possible terms, the trial court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless circumstances in aggravation that justify an upper term sentence have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.
However, a trial court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.
Authority:
PEN 1170(b)
Eighth Holding:
After the defendant’s resentencing, the California Supreme Court decided Wiley. Relying on Erlinger, our high court held that the Sixth Amendment requires a jury determination on aggravating factors related to a defendant’s criminal history, such as whether a defendant’s convictions were of increasing seriousness under rule 4.421(b)(2), and whether the defendant’s prior performance on probation was unsatisfactory under rule 4.421(b)(5).
Wiley concluded that a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.
Authority:
People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086
Erlinger v. United States (2024) 602 U.S. 821, 834 [virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea]
Ninth Holding:
where a defendant was deprived of a jury trial on aggravating factors used at sentencing, we must apply the harmless beyond a reasonable doubt standard in Chapman.
Under this standard, we must reverse the judgment unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.
Authority:
People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1087
Chapman v. California (1967) 386 U.S. 18
Tenth Holding:
The trial court relied on the defendant’s rap sheet to determine that the crimes were of increasing seriousness and were numerous under rule 4.421(b)(2). According to defendant’s rap sheet, he had a juvenile adjudication in 2007 [for specified offenses], 2010 juvenile adjudications for [different offenses] and a 2014 conviction for [a different offense].
Based on these series of offenses, a rational jury could have disagreed as to whether it demonstrated criminal conduct of increasing seriousness. Likewise, a rational jury could have also found that the defendant’s prior convictions were not particularly numerous. The failure to submit these aggravating factors to the jury was not harmless beyond a reasonable doubt, and the defendant is entitled to reversal of the upper term sentence.
Authority:
People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1089
People v. Wright (2025) 113 Cal.App.5th 832, 848
